WIN and Nine back in court over live-streaming with CEO Lancaster likely to be a key witness
Regional broadcaster WIN returns to court today in its legal action against affiliate Nine where it is seeking to stop its live streaming service, 9Now, from being available within its broadcast areas.
Despite losing last month’s interlocutory case the parties will today return to the NSW Supreme Court for what has the potential to be a landmark on the legal definition of broadcasting, where it will be again be heard by Justice David Hammerschlag.
Among the potential witnesses expected to be called in the two-day trial are WIN CEO Andrew Lancaster, who is expected to testify before the court that the launch of live streaming on 9Now has hurt the regional broadcaster’s revenues.
Nine is expected to challenge these arguments by arguing that WIN affiliate deal does not cover live-streaming, arguing that the legal action was only launched after Nine rejected a request for a share of the digital revenues in the most recent round of affiliate negotiations in December 2015.
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The case comes just days after the impact of live-streaming on the three regional TV networks was placed front and centre of the Senate Committee examining media reform.
The committee heard testimony from all three major regional TV CEOs – Lancaster, Southern Cross Austereo CEO Grant Blackley, and Prime CEO Ian Audsley – that the practice of live-streaming was undermining its businesses.
(LtoR) Regional CEOs: “Live-streaming is undermining our businesses”
Audsley, in particular, fired up on the practice, telling Senators: “We are now clearly losing money to Seven.”
“We lost it through the tennis – the client and the media buyer told us they were taking the money from us and told us they were putting on Seven’s streaming service.”
SCA’s Blackley and Prime’s Audsley also signalled they were watching the case closely and had not ruled out launching similar court actions.
The case also has the potential to set a landmark court ruling on the definition of what broadcasting is in the digital era.
A 2002 decision by former Communications minister Richard Alston, ruled that that “streaming is not broadcasting“; however, this legal case has the potential to test that decision.
The Australian Communication and Media Authority’s representative, Jennifer McNeill, last week was questioned on that decision by Nationals’ Senator Bridget McKenzie, who was concerned about the impact of live-streaming on WIN, Prime and SCA.
“The reason for that lies in the a Ministerial determination made some time ago,” said McNeill. “Content delivered over the internet was not a broadcasting service for the purposes of licensing.”
McKenzie also quizzed ACCC chairman Rod Sims over its lack of interest in the case.
Asked if the decision by Seven and Nine to live-stream nationally might be loss-leading and even a form of anti-competitive behaviour, the commissioner of the Australian Competition and Consumer Commission was forced to concede: “I’m usually ready for most questions but hadn’t figured that one.
“The honest answer is we have seen the streaming occurring but that hasn’t been an issue that occurred to us.”
Nic Christensen
WIN – the King Canute of television.
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There are some points here not discussed:
– Not all viewers in regional areas have internet access and or mobile access so they will still watch the local station
– AFL matches on Ch 7, NRL matches on Ch 9 and some programs are not available online so they will still watch the local stations for those programs not seen on the online stream along with the AFL and NRL
– Plus you need an account to watch Channel 9’s live stream and catchup service – not all viewers will want to register before watching it
– 7 and 9 has been streaming their 6pm news (as well as selected news and current affairs programs like Sunrise and Today) online part time for years before the recent around the clock streaming and no one has complained
– If they do take the affilated network to court over a catchup and streaming service provided by the affilated network (This is not Filmon or Aereo like what happened a couple of years ago in the US) then consider their affilation revoked
Regional Television I believe has a strong future, local television stations still has the support of local viewers and advertisers along as providing local news and information as well as serving the communities they serve and their revenue is still strong and will bounce back very strongly. I still watch and support the local stations on normal TV and stream online when I want to.
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Has everyone forgotten the commercial radio and record industry stoush in rhe Fed Court on this same thing and arguing over the same Alston direction? Radio said live streaming was part of the broadcast and used Alston direction as reference point and record companies argued live streaming or simulcast was not. Radio won the first round but record companies won on appeal. Now radio is forced to pay a second levy if they want to live stream. So if regional TV wins this, will there be an appeal and what could a ruling that live streaming IS part of the broadcast mean for radio??? No extra royalty levy for multinational record companies after all ….and celebrations in radioland
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